I haven’t had a chance to read it yet. (You can download it here.) Here are five things you need to know as you read it.

1) “We should never, as a policy, maltreat people under our control, detainees. We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A.” — Gen. Barry McCaffrey, U.S. Army (ret.), April 20, 2009

2) “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.” — Gen. Antonio Taguba, U.S. Army (ret.), June 18, 2008

3) The “report” being released today is merely a heavily redacted, 600-page executive summary. The full report runs to about 6,000 pages.

4) In the words of The Intercept’s Dan Froomkin, “Many of the same news organizations you are trusting today to accurately inform you about the torture report were either naive or knowing dupes in a CIA misinformation campaign orchestrated by top CIA officials, that included leaks of information that was amazingly enough both classified and inaccurate at the same time.” So you’ll want to be very, very cautious about accepting any news report that seeks to minimize or defend the torture program.

One of the worst myths official Washington and its establishment media have told itself about the torture debate is that the controversy is limited to three cases of waterboarding at Guantánamo and a handful of bad Republican actors. In fact, a wide array of torture techniques were approved at the highest levels of the U.S. Government and then systematically employed in lawless US prisons around the world – at Bagram (includingduring the Obama presidency), CIA black sites, even to US citizens on US soil. So systematic was the torture regime that a 2008 Senate reportconcluded that the criminal abuses at Abu Ghraib were the direct result of the torture mentality imposed by official Washington.

I expect that even the edited, redacted document we now have will confirm a lot of ugly things we already knew and tell us about even more ugly things we hadn’t known. But the truth needs to be made public so that we at least will know what the U.S. government has done in our name, whether or not the individuals responsible are ever brought to justice.

I understand that many Americans had, and have today, no problem with our torturing people. That doesn’t make it any more effective. And it doesn’t make it any more right.

I’ve been raising questions and raising hell about this issue for more than a decade, ever since the possibility that we were torturing first reared its ugly head months before the news broke about Abu Ghraib. And while there are a lot of issues with many shades of gray, this one, to me, is black and white. Despite quite a bit of criticism here and elsewhere online, I’ve not lost a minute’s sleep on this position, because whatever else happens, I don’t ever have to worry about my kids or grandkids asking me, “Why are people calling you a good German?”

Even before I came into office, I was very clear that in the immediate aftermath of 9/11, we did some things that were wrong. We did a whole lot of things that were right, but we tortured some folks. We did some things that were contrary to our values. I understand why it happened. I think it’s important when we look back to recall how afraid people were after the twin towers fell and the Pentagon had been hit and the plane in Pennsylvania had fallen and people did not know whether more attacks were imminent and there was enormous pressure on our law enforcement and our national security teams to try to deal with this. And, you know, it’s important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. A lot of those folks were working hard under enormous pressure and are real patriots, but having said all that, we did some things that were wrong. And that’s what that report reflects.

What a craven, morally bankrupt speech. From the incongruous use of “folks” to describe people against whom the United States of America committed violations of U.S. and international law, to the point of death in dozens of instances, to the condescending notion that in the immediate wake of 9/11 we were all so deathly terrified that we would have thrown any and all moral and constitutional principles aside for the sake of a false assurance of safety, this is a morally toxic pile of bullshit. And it’s even more offensive, coming as it does from the same president who told graduating West Point cadets in 2010:

A fundamental part of our strategy for our security has to be America’s support for those universal rights that formed the creed of our founding. And we will promote these values above all by living them — through our fidelity to the rule of law and our Constitution, even when it’s hard; even when we’re being attacked; even when we’re in the midst of war.

Now, however, we get, “But we were SKEERED!” and “It’s important for us not to feel too sanctimonious.” These comments are the ashes of our last remaining hope that this president, twice elected against one addled former war hero and one stone-cold sociopath, might, in his grappling with perhaps the most difficult ethical quandary a U.S. president has faced since Hiroshima, finally lead us down the path of righteousness. The reason he doesn’t want to look back is that his view in that direction is objectively wrong. Some of us — many of us, in fact — were saying AT THE TIME that it was important to preserve our humane values, such as they were, while pursuing the 9/11 perps, even as we feared that the crew in power was about the last group in the country likely to do that. We were right then; we are right now.

What prompted these remarks was the report by the CIA inspector general that, contrary to all previous assurances, the CIA had, in fact, hacked the computers of congressional staffers tasked with overseeing the CIA. Yet this president, who should be firing John Brennan and referring his case to the Justice Department’s criminal division, instead is defending him and his agency, not only against the current crimes (the CIA is barred by law from domestic operations, in addition to laws banning hacking without a warrant) but also against its previous war crimes. By the way, Brennan played a role in those, too; Obama never should have nominated him in the first place.

Torture is never right. Not ever. It is illegal, immoral, and ineffective. We waterboarded people? Dear God, so did Japanese military leaders during WWII, and you know what we call them now? Executed war criminals.

This president needs to get rid of John Brennan today. (And if he won’t and the House is really hot to impeach somebody, they could do a lot worse than to start with Brennan.) And despite having saddled himself with the worst attorney general since John Mitchell, he needs to direct that AG to open a criminal investigation of torture, focused not on the Lynndie Englands of the world but on those who gave the orders. We are bound by U.S. and international law to do so, and if the law means anything anymore — an open question, I admit — then we have no other choice.

“Looking forward, not back,” this president’s mantra, hasn’t worked. And looking forward won’t work until we look back, in anger and sorrow, come to terms with what we did, and make at least some sincere effort toward atoning for it. Following the laws to which we as a country were willing signatories is the bare minimum, but right now I’d settle even for that. Otherwise, this stuff will only happen again, and next time it will be worse, because, as history teaches us, the next time is always worse.

So recently, Politico, not known for either journalistic ethics or simple human decency, sat down to have a chat with Dick Cheney, his harridan erstwhile-lesbian-porn-writing wife Lynne, and his inept erstwhile political-candidate daughter Liz.

To talk about foreign policy.

With “noted mortgage fraud concern” Bank of America as sponsor.

I’m sorry to report that fricassee of feces was not on the menu, but the “chat” was utterly full of it. So, boy, howdy, was I happy to see Charlie Pierce at Esquire give the unindicted war criminal, his vile relatives, and Politico the hiding they so richly deserved. I’m delighted to say that no one was spared, not even the children.

Just a few gems:

[Politico’s] puerilty has finally crossed over into indecency. Its triviality has finally crossed over into obscenity. The comical political starfcking that is its primary raison d’erp has finally crossed over into $10 meth-whoring on the Singapore docks.

… and …

It’s not just that TBOTP[“Tiger Beat on the Potomac” — Pierce’s epithet for Politico] invited the Manson Family of American geopolitics to come together for an exercise in ensemble prevarication. It’s not just that the account of said exercise is written in the kind of cacophonous cutesy-poo necessary to drown out the screams of the innocent dead, and to distract the assembled crowd from the blood that has dripped from the wallet of the celebrity war-criminal leading the public display. And it’s not as though this was a mere interview—a “get” that could help you “win the morning (!).” In that, it might have been marginally excusable. No, this was one of [Politico editor] Mike Allen’s little grift-o-rama special events—a “Playbook lunch,” sponsored by that noted mortgage fraud concern Bank Of America. There’s an upcoming TBOTP “event” in L.A. that is sponsored by J.P. Morgan. I know what Mike Allen is, but I am so goddamn tired of haggling about the price.

… and …

That’s the freaking problem? That Dad and Mom and Exemptionette got together, but The Gay One didn’t show up. The problem was not that your publication decided to publicize itself, and suck up some of that sweet sponsorship cash from Wall Street, by putting a coward and a torturer on display with the more unpleasant members of his family? The problem was not that the alleged journalists running your place decided to give a platform to a man whose only public appearances in the near future should be unsponsored events at the Hague?

It goes on like that, a righteous rant to rank with the best of Thompson and Taibbi. I didn’t even quote the best parts.

I have not had a lot of energy or attention for blogging of late. (I’m actually finally reading “The Count of Monte Cristo,” and I also just discovered “Breaking Bad.” Sue me.) But I’m glad that Pierce is on the job. And some of the commenters give as good as Pierce does; I particularly liked the notion that Cheney will outlive even Keith Richards for all the wrong reasons.

Anyway, go read and get mad all over again — at the war criminal, his family, and the whores who give him a platform. They’re all deserving targets of wrath. For as Liz Cheney says herownself, “You can’t be responsible about the future if you don’t understand what happened in the past.”

It takes a very special kind of stupid to inherit peace, prosperity and a budget surplus and explode the deficit, allow a horrific terrorist attack, launch a war both illegal and unnecessary (killing hundreds of thousands of innocent civilians in the process), order Americans to carry out exactly the same kind of torture for which we hanged Germans and Japanese after World War II AND push policies that allowed the worst economic crisis in three-quarters of a century.

But it takes an even more special kind of stupid to say, on the subject of George W. Bush, to intelligent Americans, “Who ya gonna believe, me or your lyin’ eyes?” Naturally, these days we do not lack for that very special kind of stupid; we need only turn to Matt Bai, formerly of the Times Almighty and now with Yahoo, to find it:

A graphic this week on FiveThirtyEight.com showed how fewer and fewer Americans blame Bush for the country’s economic morass, even though his successor, Barack Obama, won two presidential campaigns based on precisely that premise.

Bush’s critics will argue that this is testament to how quickly we forget the past. But it has more to do, really, with how we distort the present.

The truth is that Bush was never anything close to the ogre or the imbecile his most fevered detractors insisted he was. Read “Days of Fire,” the excellent and exhaustive book on Bush’s presidency by Peter Baker, my former colleague at the New York Times. Bush comes off there as compassionate and well-intentioned — a man who came into office underprepared and overly reliant on his wily vice president and who found his footing only after making some tragically bad decisions. Baker’s Bush is a flawed character you find yourself rooting for, even as you wince at his judgment.

Not just no, Matt, but hell, no.

I don’t need to read your buddy’s slobbery hagiography: I know what I saw and heard, out of the man’s own mouth, for eight long, painful, and disastrous years. For sheer incompetence, only Buchanan comes close, and in terms of the consequences of his stupidity, he is without peer or even parallel. America is vastly poorer, dumber, less free and yet more vulnerable today than it was in 2000, and the blame for that can be laid squarely at the feet of Li’l Boots McDrydrunk and the monsters he hired. I heard the man talk, so I know for a fact that he is an imbecile. I heard him admit on ABC News that he ordered torture, so I know for a fact that he is an ogre. And you, sir, can go straight to hell with him.

The only thing I’m rooting for where Bush is concerned is a seat in the dock at The Hague. And while oral sex is no longer a crime, public oral sex still is, so, Matt, buddy, next time you sit down to write about Bush 43, I’d look around for cops first.

A still-secret Senate Intelligence Committee report calls into question the legal foundation of the CIA’s use of waterboarding and other harsh interrogation techniques on suspected terrorists, a finding that challenges the key defense on which the agency and the Bush administration relied in arguing that the methods didn’t constitute torture.

The report also found that the spy agency failed to keep an accurate account of the number of individuals it held, and that it issued erroneous claims about how many it detained and subjected to the controversial interrogation methods. The CIA has said that about 30 detainees underwent the so-called enhanced interrogation techniques.

The CIA’s claim “is BS,” said a former U.S. official familiar with evidence underpinning the report, who asked not to be identified because the matter is still classified. “They are trying to minimize the damage. They are trying to say it was a very targeted program, but that’s not the case.”

The findings are among the report’s 20 main conclusions. Taken together, they paint a picture of an intelligence agency that seemed intent on evading or misleading nearly all of its oversight mechanisms throughout the program, which was launched under the Bush administration after the Sept. 11, 2001, attacks and ran until 2006.

Some of the report’s other conclusions, which were obtained by McClatchy, include:

_ The CIA used interrogation methods that weren’t approved by the Justice Department or CIA headquarters.

_ The agency impeded effective White House oversight and decision-making regarding the program.

_ The CIA actively evaded or impeded congressional oversight of the program.

_ The agency hindered oversight of the program by its own Inspector General’s Office.

So, in plain English:

The CIA tortured people — some of whom died of it, remember — in violation not only of international and U.S. law but also in violation of the flimsy, themselves-illegal guidelines set up by the Justice Department.

The CIA lied to the White House and Congress, obstructing their oversight, which is duly required by Constitution and statute.

The CIA lied to its own inspector general.

So CIA personnel ordered and committed hanging offenses and lied to everybody about it. That’s the bottom line, folks. All the rest is sound and fury signifying nothing.

Let’s be very clear about what needs to happen here:

The people who actually carried out the crimes must be charged and tried, but so must the people who ordered them and the people who lied about them.

If anyone carried out or ordered torture that resulted in death, that individual is subject to the death penalty. As a tough-on-crime conservative, I can sleep soundly knowing that.

If anyone used the classification process to try to hide evidence of a crime, he should be criminally prosecuted for that offense.

If anyone then or now in a Senate-confirmable position carried out or ordered a crime, he should be impeached and convicted, thereby to revoke his pension and any other benefits of having served in the federal government.

So let’s do ourselves a favor. Let’s put paid, once and for all, to this notion of American exceptionalism. We are not special. We are not a shining city on a hill. We are not a Christian nation in any way that Christ Himself would recognize. We are not even, to judge by both legal standards and OECD measures for quality of life, a particularly good example.

It is tempting to say that we are governed by a parliament of whores, but to do so would insult whores, who generally are not nearly as hypocritical about what they do as our leaders are. We are a plutocracy, an oligarchy, an outlaw nation, and the only differences between our genocide and that of the Nazis is that ours was less recent and less efficient. Indeed, it was ironic for me to read tonight on Facebook about my friend Rabbi Fred Guttman honoring the congressional service of my friend Howard Coble, when Coble, a former federal prosecutor, did nothing to stop precisely the kind of behavior on the part of Americans that got Nazis hanged at Nuremberg.

I’d love to be proved wrong on this. I really, really would. But if it hasn’t happened by now, it ain’t gonna. And Americans need to understand that and to plan their futures accordingly.

A United Nations investigator has demanded that the US publish classified documents regarding the CIA’s human rights violations under former President George W. Bush, with hopes that the documents will lead to the prosecution of public officials.

Documents about the CIA’s program of rendition and secret detention of suspected terrorists have remained classified, even though President Obama’s administration has publicly condemned the use of these “enhanced interrogation techniques”. The US has not prosecuted any of its agents for human rights violations.

UN investigator Ben Emmerson, the UN special rapporteur on the promotion and protection of human rights while countering terrorism, said that the classified documents protect the names of individuals who are responsible for serious human rights violations.

“Despite this clear repudiation of the unlawful actions carried out by the Bush-era CIA, many of the facts remain classified, and no public official has so far been brought to justice in the United States,”Emmerson said in a report to the UN Human Rights Council, according to Reuters.

Kept in secret prisons around the world, the CIA’s detainees were subjected to torture including waterboarding, sleep deprivation and various other interrogation techniques that violate human rights. The detainees were often subjected to clandestine transfers to secret prisons known as CIA ‘black sites’.

“There is now credible evidence to show that CIA ‘black sites’ were located on the territory of Lithuania, Morocco, Poland, Romania and Thailand, and that the officials of at least 49 other states allowed their airspace or airports to be used for rendition flights,” Emmerson said, describing how suspected terrorists were often detained without being charged for any crimes, receiving extradition procedures or having access to lawyers.

Emmerson has urged the US to prosecute any public official who was involved in setting up the CIA “black sites” at which human rights or legal violations occurred. Even though the Obama administration has condemned those who promoted the use of such facilities for inhumane procedures, the administration has taken no steps to punish any of its public officials. Attorney General Eric Holder has said that the Justice Department would not take legal actions against those who “acted in good faith” and followed the guidelines provided by the Office of Legal Counsel during the Bush era.

But without names and details about the involvement of US officials at CIA black sites, the government is maintaining a level of secrecy and “perpetuating impunity for the public officials implicated in these crimes,” Emmerson said. A Senate committee led by Sen. Dianne Feinstein (D-Calif.) previously investigated the CIA’s interrogation program and may have had complete access to classified information about it.

Emmerson has called for this information to be published “without delay, and to the fullest extent possible.”

He ain’t the only one. I spent long years here during the reign of Bush the Lesser, Cheney, Rumsfeld, Addington, Yoo, and my freshman hall counselor, Jim Haynes, calling for the people responsible for ordering torture and other crimes against humanity (including the unilateral military invasion of Iraq, a country with which we were not legally at war, in violation of both ratified treaties and U.S. statutes) to be investigated, indicted, tried where appropriate and punished as needed. In the case of torture or other crimes against humanity that result in the death of another human being, the punishment is execution. And I’ve been a tough-on-crime conservative my whole life.

A war criminal is a war criminal. A murderer under international laws of human rights is a murderer under international laws of human rights. The Constitution makes our legal priorities plain: It itself and our ratified treaties, which define these crimes, constitute the Supreme Law of the Land. So hang ‘em all, and let God sort ‘em out.

But that’s only where it should start. If we deserve to be called free and self-governing people, we also need to look in the mirror and figure out how and why we let these crimes happen — because many, if not most, could have been prevented if we as a body politic had taken our responsibilities as citizens seriously. Instead, we knew of torture at least six months before the 2004 election and did nothing. The New York Times knew about warrantless wiretapping of U.S. citizens in criminal violation of the Foreign Intelligence Surveillance Act a year before the 2004 election and held its story. When Democrats retook Congress in 2006, Speaker-apparent Nancy Pelosi took impeachment “off the table,” and the voters let them do it. And President Obama and Attorney General Holder have repeated their desire to “look forward, not back,” and the voters have let them do THAT, too.

Imagine the people of Germany, circa 1946, claiming that intent and ask yourself how we would have responded. And we had conquered them by force and yet wanted to rehabilitate West Germany as a bulwark against communism. How much easier should it have been, how much less should we have needed to worry about the tender sensibilities of the Washington establishment and its courtiers in the press, than it was to punish individual Germans while keeping Germany on our side?

The UN is by no means a perfect organization. But the U.S. is by no means a perfect country. Let us follow the facts and the law — which, remember, we willingly signed and ratified — wherever they lead us, and let us act as the law obliges us to act. If you want an omelette, you need to break a few eggs. In this case, incontrovertibly, if we want to restore our own honor as a free and self-governing people, we need to break a few necks.

Like this:

Wednesday, December 12, 2012 6:49 pm

McCain is on the Senate Intelligence Committee, which is expected to approve on Thursday a 6,000-page report on the Bush administration’s torture program. And McCain wants that report made public. His reasoning is that we didn’t get any useful information out of the torture program, in particular not any information that led to the killing of Osama bin Laden. To me, that’s threading the needle a little too finely; the damn thing should be public because it’s about torture, hello? It should be made public because it’s about crimes committed by our government, not because of the utility, or lack thereof, of those crimes. But McCain, who hasn’t done much right lately, is, to his credit, on the right side of both morality and history on this one. I just hope his committee colleagues agree with him.

Put simply, in the real world, where torture and other war crimes appear to have strong bipartisan support, there are no good choices. A vote for Barack Obama is a vote for a man who has taken the executive branch’s extrajudicial fight against “terrorism” even farther than Bush did (and Bush took it far enough to merit a date with a Netherlands noose). A vote for Mitt Romney is a vote for a guy who almost certainly cares as little as Obama for constitutional rights and, more broadly, the accountability of power AND who is beyond likely to nominate more constitutional sociopaths to the Supreme Court. And with all due respect to my Libertarian friends, a vote for Gary Johnson is, effectively, a vote for Obama.

What’s a voter to do?

Turley: We appear to be in a sort of a free-fall. We have what used to be called an “imperial presidency.”

Cusack: Obama is far more of an imperial president than Bush in many ways, wouldn’t you say?

Turley: Oh, President Obama has created an imperial presidency that would have made Richard Nixon blush. It is unbelievable.

Cusack: And to say these things, most of the liberal community or the progressive community would say, “Turley and Cusack have lost their minds. What do they want? They want Mitt Romney to come in?”

Turley: The question is, “What has all of your relativistic voting and support done for you?” That is, certainly there are many people who believe –

Cusack: Well, some of the people will say the bread-and-butter issues, “I got healthcare coverage, I got expanded healthcare coverage.”

Turley: See, that’s what I find really interesting. When I talk to people who support the administration, they usually agree with me that torture is a war crime and that the administration has blocked the investigation of alleged war crimes.

Then I ask them, “Then, morally, are you comfortable with saying, ‘I know the administration is concealing war crimes, but they’re really good on healthcare?’” That is what it comes down to.
The question for people to struggle with is how we ever hope to regain our moral standing and our high ground unless citizens are prepared to say, “Enough.” And this is really the election where that might actually carry some weight — if people said, “Enough. We’re not going to blindly support the president and be played anymore according to this blue state/red state paradigm. We’re going to reconstruct instead of replicate.” It might not even be a reinvented Democratic Party in the end that is a viable option. Civil libertarians are going to stand apart so that people like Nancy Pelosi and Barack Obama and others know that there are certain Rubicon issues that you cannot cross, and one of them happens to be civil liberty.

Cusack: Yeah, because most people reading this will sort of say, “Okay, this is all fine and good, but I’ve got to get to work and I’ve got to do this stuff, and I don’t know what these f—— guys are talking about. I don’t really care.”

Both Turley and Cusack seem to lean against voting for Obama’s re-election, on the grounds that they would be supporting a serial war criminal and violator of the Constitution, even though, by his own admission, Romney would embrace many of the same policies. But neither flatly says that’s what he intends to do. And that’s where we find ourselves: We have no good choices. And the reason we have good choices is that We, the People, brought this shit on ourselves by letting it go on before — now just with Bush 43, when we soiled our drawers on 9/11 and have spent the better part of the ensuing decade running around like decapitated chickens, but also with all sorts of crime dating at least as far back as our propping up banana republics in the 1930s for the greater good of Chiquita.

I’ve already called for Obama’s impeachment on just this issue and petitioned my federal elected officials accordingly. Obviously, that isn’t going to happen. I know that the long-term solution is to start electing officials at the local level who demonstrate a decent respect for the rule of law and holding the powerful accountable and hope that in 20 or 25 years, one of them can work his/her way to the White House. But that’s only a long-term solution (and I won’t even get into the obstacles). We need an answer to a short-term question: How does one cast a ballot for president in November in a way that honors and protects the Bill of Rights?

Sunday, November 13, 2011 9:42 pm

… is that Texas Gov. Rick Perry said, “Waterboarding is not torture … and I’ll be for it until the day I die.”

To which Charles Pierce responds, “This is precisely, and in every respect, the position taken by several Japanese military officers in 1945. They felt exactly the same way, which is why we [expletive] executed them.“

Like this:

Wednesday, August 17, 2011 8:33 pm

It’s legally true, as Mitt Romney famously reminded us recently. But in a number of ways, corporations are actually better than people (from a corporation’s standpoint), by which I mean they have all the privileges (no, they can’t vote, but they can buy politicians, which you can’t) and, increasingly, none of the obligations.

Lawyers for Exxon Mobil Corp. have asked the full U.S. Court of Appeals for the D.C. Circuit to reject a panel decision that exposed the oil giant to corporate liability for alleged atrocities in Indonesia.

Exxon’s lawyers, including Sri Srinivasan of O’Melveny & Myers, said in a petition (PDF) that the three-judge panel got it wrong when it found Exxon can be held liable under the Alien Tort Statute.

The 2-1 panel decision “vastly expanded” the statute to find that corporations can be liable for violent acts committed abroad, Srinivasan said.

Srinivasan, chair of O’Melveny’s appellate and Supreme Court practice, said the panel decision, if it is not overturned, “threatens to unleash a flood of litigation in U.S. court for actions lacking any salient connection to the United States.”

Exxon’s lawyers said the D.C. Circuit decision conflicts with a ruling in the U.S. Court of Appeals for the 2nd Circuit. Srinivasan argued in Exxon’s petition that under customary international law only individuals, not corporations, can be held accountable for human rights violations.

“There is a strong presumption in American law that statutes do not apply extraterritorially, even where an express cause of action exists,” Srinivasan said. “There is nothing in the text or statutory history of the ATS sufficient to trump this strong presumption.”

The attorneys for Exxon urged the appeals court to “reject the notion that the ATS can be used as a vehicle to bring suit in U.S. courts for alleged misconduct that occurred abroad.”

Please note what the company is not doing here.

It is not arguing that it didn’t torture.

It is not arguing that it didn’t maliciously, recklessly or negligently allow torture.

No, it is arguing that it cannot even be sued over the possibility that it might have. It is arguing that no one should even have the right to make an allegation, marshal his evidence and let a judge or jury decide based on the facts and the law.

Spare me the technical legal argument. That technical legal argument — that the law allows only individuals, not corporations, to be so sued — is precisely my point. We are allowing corporations to commit crimes, including what would be capital offenses if committed by identifiable, individual humans, with impunity.

This choice — and it is a conscious choice, not just something that happened — is a choice we must renounce, or else we have lost the right to call ourselves civilized.

Wednesday, July 6, 2011 9:55 pm

Three years and a couple of weeks ago, Maj. Gen. Antonio Taguba said this:

“The commander in chief and those under him authorized a systematic regime of torture. … After years of disclosures by government investigations, media accounts and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

The Justice Department has opened full criminal investigations of the deaths in CIA custody of two detainees, including one who perished at Iraq’s notorious Abu Ghraib prison, U.S. officials said Thursday.

The decision, announced by Attorney General Eric H. Holder Jr., means continued legal jeopardy for several CIA operatives but at the same time closes the book on inquiries that potentially threatened many others. A federal prosecutor reviewed 101 cases in which agency officers and contractors interrogated suspected terrorists during years of military action after the Sept. 11, 2001, attacks but found cause to pursue criminal cases in only two. …

“On this, my last day as director, I welcome the news that the broader inquiries are behind us,” said a statement from CIA Director Leon Panetta, who will take over as defense secretary on Friday. “We are now finally about to close this chapter of our agency’s history.”

Like this:

Monday, June 6, 2011 10:33 pm

Secretary of State Hillary Clinton calls out Syria for torturing and killing 13-year old Hamza Ali al-Khateeb, and former chief Guantanamo prosecutor Morris Davis calls out Clinton … and the rest of us:

In the fall of 2005, when I was chief prosecutor for the military commissions at Guantanamo Bay, Cuba, I sat down for a lengthy discussion with a veteran member of the prosecution team, a Marine Corps officer with an extensive background in criminal prosecution. We discussed a case that caused him concern, one he said he was not comfortable prosecuting. After describing some of the specifics of the detainee’s treatment at Guantanamo, which was documented in official records, the prosecutor said: “Sir, they f—ed with him and they f—ed with him until now he’s as crazy as a sh*t-house rat.” In an interview with Bob Woodward published in the Washington Post in January 2009, Susan Crawford, the Bush administration official who supervised the military commissions, explained why she refused to send the same case to trial when it reached her desk in the spring of 2008. “We tortured Qahtani,” she said, “His treatment met the legal definition of torture.”

The alleged torture of Hamza Ali al-Khateeb, Syed Saleem Shahzad, and Mohammed al Qahtani by government agents that signed the Convention Against Torture begs the question, is a law that is ignored worth the paper it is written on? …

As chief prosecutor for the military commissions, I personally approved the charges against some of the detainees now convicted of war crimes and I participated in discussions on potential charges against others like Khalid Sheikh Mohammed. A phrase used repeatedly in detainee charges is “in violation of the law of war.” As a career military attorney, prosecuting those who violated the law of war was a duty I readily accepted. For nearly two years, I was a vocal supporter of the detention facility at Guantanamo and the military commissions. In June 2007, I published an op-ed entitled “The Guantanamo I Know,” where I defended the detention facility and the military commission process.

I instructed the prosecutors that we would not use information derived by waterboarding or any other technique that went too far, and for two years that policy was unchallenged. Then, in October 2007, I received a written order from Deputy Secretary of Defense Gordon England placing me under the command of Brigadier General Tom Hartmann and Defense Department General Counsel Jim Haynes*. Hartmann disputed the policy I established arguing that “President Bush said we don’t torture, so what makes you think you have the authority to say we do?” He believed the information I had excluded should be introduced as evidence in detainee trials. Haynes was the architect of the memo former Secretary of Defense Donald Rumsfeld signed authorizing enhanced interrogation techniques, the memo on which Rumsfeld scribbled, “I stand 8-10 hours a day. Why is standing limited to four hours?” I was summoned to the Pentagon and given a copy of the order. I went back to my office and drafted my resignation. Information obtained by extreme coercion – what most call torture – has no place as evidence in what purports to be an American military court of justice. …

Torture violates both domestic and international law, and like the basis for the charges against the detainees, torture is “in violation of the law of war.” The law requires that allegations of torture be investigated and those who engaged in it be held to account. To ignore that binding legal obligation is indefensible and inexcusable, whether it is the government of Syria, Pakistan or the United States who is derelict in performing its duties.

A lot of Americans seem to think God has turned his face from us. I don’t know about that. But I am reasonably confident that if He has done so, it isn’t because of abortion or Teh_Gay, it’s because of this.

And this isn’t just a Bush thing. Come to find out that one of the Polish prosecutors who was getting ready to bring charges against officials in that country who cooperated with the U.S.’s “black sites” effort has been fired, and the Polish government is using “state secrets” claims to investigate and even prosecute journalists there who have tried to report on the country’s crimes.

Back when I was reading lots of samizdat in grad school, it was clear the US genuinely served as a model for Eastern European activists (whether or not we should have been a model is another question).

I guess we still serve as such a model. Only rather than serving as a model of democracy and creativity, we’re now showing others how to use state secrets to hide torture and other crimes.

Like this:

Wednesday, May 25, 2011 8:04 pm

At times during my intermittent career as a manager, I have found it necessary to modify the performance of my direct reports. Although such modification does not, contrary to what you might have heard, actually involve whips, chairs or cattle prods, it can and usually does involve what we might discretely call incentives and disincentives. Rewards and punishments, in other words.

This is tricky business. My philosophy as a newspaper editor, given the relative rigidity of our deadline schedule and the high stakes involved with issues of factual accuracy, was to err on the side of harshness. My own adaptation of the credo approved by corporate HR went something like this: Bad behavior will continue until the pain of continuing the bad behavior outweighs the pain of altering it.

Monochromatic? Lacking in nuance? Guilty as charged. But it worked. The kid from the University of Georgia whose performance problems were driving me up a tree shaped up right quick once he realized he was facing the very real possibility of having to work every single Georgia home football weekend. Oh, yes, I did.

When you get to the level of government work, opportunities for bad behavior abound, and just about the worst behavior is torture. Unfortunately, Americans apparently have decided for political reasons that holding the torturers (including those who ordered torture) accountable for their behavior would be Bad Form, or whatever the current explanation is, blah-blah-blah-kharmacakes.

But there is, of course, a flip side to that approach, and that’s rewarding the behavior you want to see, in hopes of seeing more of it. We could, at the least, honor those who understood the law, remembered their training, opted to remember the law rather than soiling their drawers:

Throughout the military, and throughout the government, brave men and women reported abuse, challenged interrogation directives that permitted abuse, and refused to participate in an interrogation and detention program that they believed to be unwise, unlawful and immoral. The Bush administration’s most senior officials expressly approved the torture of prisoners, but there was dissent in every agency, and at every level.

There are many things the Obama administration could do to repair some of the damage done by the last administration, but among the simplest and most urgent is this: It could recognize and honor the public servants who rejected torture.

In the thousands of pages that have been made public about the detention and interrogation program, we hear the voices of the prisoners who were tortured and the voices of those who inflicted their suffering. But we also hear the voices of the many Americans who said no.

Some of these voices belong to people whose names have been redacted from the public record. In Afghanistan, soldiers and contractors recoiled at interrogation techniques they witnessed. After seeing a prisoner beaten by a mysterious special forces team, one interpreter filed an official complaint. “I was very upset that such a thing could happen,” she wrote. “I take my responsibilities as an interrogator and as a human being very seriously.”

I’m not naive. I understand that this probably won’t happen during my lifetime. Hugh Thompson Jr., the Army helicopter pilot who threatened, at the risk of his own life, to machine-gun U.S. soldiers involved in the My Lai massacre in Vietnam if they did not stop killing civilians, didn’t get official Army recognition for 30 years.

But if we can’t investigate, indict, prosecute and punish those responsible for torturing and, in some cases, killing prisoners in our custody — prisoners who in many instances had done nothing wrong — perhaps we can at least salvage something for those who tried to do the right thing, and for ourselves as a nation whose fraying reputation for morality, freedom and justice rests, if it rests at all, on their efforts. I don’t know if a Presidential Medal of Freedom means anything anymore — giving one to George Tenet, who signed off on torture, debases the brand — but there ought to be something we can do.

Thursday, July 1, 2010 10:42 pm

It is common in every age for humanity to mourn the passing of morality. And in the interest of perspective, I guess it’s appropriate to point out that no one we know of has been operating gas chambers and crematoria lately.

Only here’s the thing. A study by Harvard students of the four largest U.S. papers by circulation found that between the 1930s and 2004, they overwhelmingly called waterboarding torture, often explicitly. But when the Bush administration started pushing back, a funny thing happened(pdf):

… from 2002‐2008, the studied newspapers almost never referred to waterboarding as torture. The New York Times called waterboarding torture or implied it was torture in just 2 of 143 articles (1.4%). The Los Angeles Times did so in 4.8% of articles (3 of 63). The Wall Street Journal characterized the practice as torture in just 1 of 63 articles (1.6%). USA Today never called waterboarding torture or implied it was torture.

Now, why might these phenomena have occurred?

One simple answer is that mainstream media are not the liberal, America-hating institutions their right-wing critics always claim. Indeed, they never have been. That’s factual enough, as far as it goes.

But there’s a bigger problem here.

Conservatives like to accuse liberals of not having any standards or values, of “moral relativism,” of believing there were no objective facts, only different individual perspectives. But in fact, the so-called liberal media, for about three-quarters of a century, had a pretty damn clear standard and value with respect to waterboarding: It was torture, and it was wrong, and it was a crime, and that was a fact.

What changed?

Simple: George W. Bush and Dick Cheney started pushing back. And the news media chose not to believe their own lyin’ eyes. But don’t take my word for it. Take … well, the word of an anonymous spokesman for The New York Times in this story from Yahoo!‘s Michael Calderone:

However, the Times acknowledged that political circumstances did play a role in the paper’s usage calls. “As the debate over interrogation of terror suspects grew post-9/11, defenders of the practice (including senior officials of the Bush administration) insisted that it did not constitute torture,” a Times spokesman said in a statement. “When using a word amounts to taking sides in a political dispute, our general practice is to supply the readers with the information to decide for themselves. Thus we describe the practice vividly, and we point out that it is denounced by international covenants and in American tradition as a form of torture.”

The Times spokesman added that outside of the news pages, editorials and columnists “regard waterboarding as torture and believe that it fits all of the moral and legal definitions of torture.” He continued: “So that’s what we call it, which is appropriate for the opinion pages.”

So by this standard of logic, if the White House says 2 + 2 = 5, The New York Times repeats that position uncritically, justifying that action by saying that using a particular numerical fact “amounts to taking sides in a political dispute. “Fit[ting] all the moral and legal definitions of torture” might be good enough for The New York Times’ opinion pages, but apparently that’s not good enough for those elevated beings who breathe the rarified air of the Times newsroom, even when the “legal definition of torture” is simple enough that even a New York Times reporter ought to be able to understand it:

For 75 years or more, Americans had no trouble understanding that waterboarding met this definition. All of a sudden, however, along come Bush and Cheney and the Times isn’t so sure. Hey, Times, here’s a clue, free of charge: Not all political disputes are honest differences of opinion. Some of them involve one side or the other making assertions of fact that are objectively false, either because they’re shooting from the hip or because they’re lying. And guess what a journalist’s job is? To report when that happens, you asshats.

The Times and the other major papers surveyed have failed to do a journalist’s job. Andrew Sullivan, the Atlantic blogger who recently publicized the weeks-old Harvard study, comments:

So their journalism is dictated by whatever any government says. In any dispute, their view is not: what is true? But: how can we preserve our access to the political right and not lose pro-torture readers? If you want a locus classicus for why the legacy media has collapsed, look no further.

So if anyone wants to get the NYT to use a different word in order to obfuscate the truth, all they need to do is make enough noise so there is a political dispute about a question. If there’s a political dispute, the NYT will retreat. And so we now know that its core ethos is ceding the meaning of words to others, rather than actually deciding for itself how to call torture torture. Orwell wrote about this in his classic “Politics and the English Language.” If newspapers will not defend the English language from the propaganda of war criminals, who will? And it is not as if they haven’t made this call before — when they routinely called waterboarding torture. They already had a view. They changed it so as not to offend. In so doing, they knowingly printed newspeak in their paper — not because they believed in it, but because someone else might.

This is not editing. It is surrender. It is not journalism; it is acquiescence to propaganda. It strikes me as much more egregious a failing than, say, the Jayson Blair scandal. Because it reaches to the very top, was a conscious decision and reveals the empty moral center in the most important newspaper in the country.

When historians look back and try to understand how the US came to be a country that legitimizes torture, the New York Times will be seen to have played an important role in euphemizing it, enabling it, and entrenching it. The evidence shows conclusively that there is not a shred of argument behind the dramatic shift in 2002 — just plain cowardice.

In my view, the people who made that decision should resign.

Which is fine, as far as it goes. But I would argue that the Times has even bigger problems, especially if you believe in an afterlife. Philly Daily News blogger Will Bunch gets at this:

… in claiming they were working so hard not to take “a side,” the journalists who wouldn’t call waterboarding “torture” were absolutely taking a side and handing a victory to the Bush administration, which convinced newspapers to stop unambiguously describing this crime as they had done for decades prior to 2004. It’s a tactic that has continued to this day. It’s the reason why Cheney — who’d been nearly invisible when he was in power — and [former Bush administration lawyer John] Yoo were suddenly all over the place beginning on Jan. 21, 2009, because they were desperately trying to keep framing this debate as the newspapers had, that their torture tactics were a public, political disagreement, and not a war crime.

And tragically, they succeeded. They were America’s leaders, they tortured, and they got away with it. And newspapers and other journalists drove the getaway car.

It’s not just that they can’t do journalism right, although that is certainly true and has awful ramifications for our country’s future. It’s that they’ve lost even the most basic grasp of the difference between right and wrong and are suffering absolutely no consequences for having done so.

Wednesday, June 16, 2010 9:48 pm

… and while I was looking elsewhere, the Supreme Court ruled Monday that it’s now constitutional to kidnap people and torture them. This was in the case of Maher Arar, the Canadian whom we shipped to Syria to be tortured, which was great except that he was, um, well, innocent.

Like this:

Friday, May 21, 2010 9:22 pm

Impeach the SOB. Bush crapping all over habeas corpus was one big reason why people voted for Obama. It was wrong when Bush did it, and it’s wrong now.

I am unsure why Obama believes things have to be this way. Hell, Britain, which under Tony Blair may have gone at least as far along the road toward totalitarianism as the U.S. did under Bush, is abruptly reversing course now that Nick Clegg’s the new sheriff:

It is outrageous that decent, law-abiding people are regularly treated as if they have something to hide.

It has to stop.

So there will be no ID card scheme.

No national identity register, no second-generation biometric passports.

We won’t hold your internet and email records when there is no just reason to do so.

CCTV will be properly regulated, as will the DNA database, with restrictions on the storage of innocent people’s DNA.

And we will end practices that risk making Britain a place where our children grow up so used to their liberty being infringed that they accept it without question.

There will be no ContactPoint children’s database.

Schools will not take children’s fingerprints without even asking their parent’s consent.

This will be a government that is proud when British citizens stand up against illegitimate advances of the state.

That values debate, that is unafraid of dissent.

That’s why we’ll remove limits on the rights to peaceful protest.

It’s why we’ll review libel laws so that we can better protect freedom of speech.

And as we tear through the statute book, we’ll do something no government ever has:

We will ask you which laws you think should go.

Because thousands of criminal offences were created under the previous government . . .

Taking people’s freedom away didn’t make our streets safe.

Obsessive lawmaking simply makes criminals out of ordinary people.

So, we’ll get rid of the unnecessary laws, and once they’re gone, they won’t come back.

The judicial inquiry announced by the foreign secretary into Britain’s role in torture and rendition since September 2001 is poised to shed extraordinary light on one of the darkest episodes in the country’s recent history.

It is expected to expose not only details of the activities of the security and intelligence officials alleged to have colluded in torture since 9/11, but also the identities of the senior figures in government who authorised those activities.

William Hague‘s decision follows a series of reports in the Guardian and other media over the last five years about the manner in which British intelligence officers were told they could interrogate terrorism suspects they knew were being tortured, and the way in which that secret policy was used in effect to subcontract torture to overseas intelligence agencies.

There has also been a steady drip of disclosures about the way in which British territory, airspace and facilities have been used during America’s programme of extraordinary rendition and about orders that led to British special forces in Iraq handing over detainees to US forces, despite fears they were to be tortured.

Finally, the British army has been forced to admit that at least eight people died in its custody in Iraq, including a number who were being interrogated using illegal techniques including hooding.

Obviously I’ll believe it when Parliament enacts the law and when the appropriate British officials are brought up on criminal charges, and not one second before. Still, I think it’s worth pondering a couple of questions here.

First, does Britain think it is any less vulnerable to terrorism than the U.S. is? I kind of doubt it, even with Northern Ireland at peace.

But even if it did think so, why might that be? I suppose the fact that it’s not British planes and drones killinginnocent civilians might have something to do with it.

And how is it that Britain, which Americans consider less democratic/less free than they consider themselves, can attempt to hold its powerful accountable for their misdeeds when we say there is nothing to be gained from doing so?

Apparently Britain’s leaders feel more of a sense of responsibility, more of a sense of obligation to comport themselves in accordance with the law, than American leaders do — except for Dennis Kucinich, whom no one takes seriously precisely becausehe expects our leaders to comport themselves in accordance with the law, even if it means introducing a bill to ban something that’s already banned just to underline the point.

I think we as Americans have two choices: We can start raising hell with Howard Coble and Mel Watt and Brad Miller and Kay Hagan and Richard Burr to hold past and current officials accountable for their crimes. Or we can tear up the Declaration of Independence and go apologize to the corpse of George III.

Hilary Anderson at BBC has been following the Bagram prison story closely. Today, she reports that the International Committee of the Red Cross (ICRC) has confirmed the existence of a second prison site at Bagram. The presence of a second site has long been suspected, a prison the Afghans call Tor Prison, or the “Black” Prison. …

Last month, BBC reported on conditions at the main Parwan facility. The scenes as described were right out of the iconography of Guantanamo. Prisoners in handcuffs and leg shackles, “moved around in wheelchairs” with blackout goggles and headphones “to block out all sound.” This was the treatment for a prison population that even the U.S. military admits is far and away not made up of serious terrorists. Meanwhile, the number held at Bagram has swelled to approximately 800 prisoners.

But we don’t know how many are in the other, “the Black Hole.” We don’t know because the U.S. still insists that no second prison exists. Prisoners held at Tor, according to investigations by BBC, are tossed into cold concrete cells, where the light is kept on 24 hours. Noise machines fill their cells with constant sound, and prisoners are sleep deprived as a matter of policy, with each cell monitored by a camera, so the authorities will know when someone is falling asleep and come to wake them.

Prisoners are beaten and abused. According to BBC’s article last month, one prisoner was “made to dance to music by American soldiers every time he wanted to use the toilet.”

Both the Washington Post and the New York Times reported late last year on conditions at the black-site prison, believed to be run by U.S. Joint Special Operations Command (JSOC). Each of these reports noted that prisoners were subjected to abuse. One prisoner, a 42-year-old farmer named Hamidullah told the New York Times about his stay in the Tor prison, June through October 2009:

I can’t remember the number of days I spent there because it’s hard to tell days from nights in the black jail, but I think every day they came twice to ask questions.

They took me to their own room to ask the questions. They beat up other people in the black jail, but not me. But the problem was that they didn’t let me sleep. There was shouting noise so you couldn’t sleep….

The black jail was the most dangerous and fearful place. It is a place where everybody is afraid. In the black jail, they can do anything to detainees.

Together with the BBC investigation and the ICRC confirmation, we can see that the military is lying through their teeth when they claim there is no second Bagram facility, or that no abuse takes place at Bagram. (For more on Bagram and the issue of indefinite detention, see this recent diary by Jim White.)

The presence of sleep deprivation, sensory deprivation, brutality, isolation and the like at the U.S. prison complex has not been a matter of protest among U.S. progressives, many of whom still support the administration of President Barack Obama. Many liberals have been in denial over the poor record of President Obama on the issue of torture and detention policies. The President began his administration with a big series of presidential orders that supposedly ended the Bush administration’s policy of torturing prisoners, and shut down the CIA’s black site prisons.

But as we know now, not all the black site prisons were shut down. Nor was the torture ended. Whether it’s beatings and forced-feedings at Guantanamo, or the kinds of torture described at Bagram, it’s obvious that torture has not been rooted out of U.S. military-intelligence operations. In fact, by way of the Obama administration’s recent approval of the Bush-era Army Field Manual on interrogations, with its infamous Appendix M, which allows for much of the kind of torture practiced at Bagram, the White House has institutionalized a level of torture that was introduced by the previous administration, but which has been studied and devised over the last fifty or sixty years.

OK, all you Obama supporters: Were you against torture, or were you just against Bush?

… and if wishes were ponies, the Justice Department would have coughed up information related to the destruction of e-mails on torture a long, long time ago or else John Conyers, chairman of the House Judiciary Committee, who asked for the info on March 1, would’ve issued subpoenas and then held some senior Justice officials in contempt and locked their butts up when the information was not forthcoming.

Here in the real world, it falls to the nonprofit Citizens for Responsibility and Ethics in Washington to take the legal action that Justice itself or the Congress should have taken long ago. And, sadly, CREW cannot, itself, lock up recalcitrant Executive Branch stonewallers.

Still, at some point, some judge is going to show less patience than John Conyers, and I wouldn’t want to be working for Eric Holder when that happens.

Wednesday, May 5, 2010 11:15 pm

Jane Mayer, in her review of Marc Thiessen’s “Courting Disaster,” offers a fine dissection of that book’s flaws (Books, March 29th). Torture is wrong under any circumstances. As General David H. Petraeus recently remarked (specifically referring to Abu Ghraib and to Guantánamo), such abusive techniques are “nonbiodegradable. . . . The enemy continues to beat you with them like a stick.” He’s right—the pictures from Abu Ghraib and the publicity surrounding Guantánamo, waterboarding, and other “enhanced interrogation techniques” have created far more terrorists than most people understand. For a country that professes to stand for the rule of law and individual rights, we look like the worst kind of hypocrites. Consider a war we fought in the past against a brutal enemy that tortured and killed prisoners, executed civilians, and engaged in a number of atrocities. Several American leaders argued that the only way to prevail was to engage in the same kind of tactics, because that was the only thing that the enemy understood or respected (sound familiar?). But other leaders believed that it was not enough to win; they also had to do it in a way that was consistent with the values of their society and the principles of their cause. That conflict was the Revolutionary War, and the leaders included George Washington and John Adams. If we mean what we say—if we really believe that we’re the good guys, and I hope we do—then this is the time to stand by those principles which our Founding Fathers professed and lived by. That’s what, I hope, makes us the leaders of the free world.

Brigadier General Patrick Finnegan
Dean of the Academic Board
The United States Military Academy at West Point
West Point, N.Y.

Wednesday, April 28, 2010 5:20 am

Someone needs to go to prison. Actually, they all do, but as was established during the Clinton and Bush 43 years, you can get in legal trouble for perjury but not torture, so whoever lied — whether it was the torturers or Yoo — needs to be prosecuted.

Like this:

Thursday, April 15, 2010 8:49 pm

“One of the most important ways in which humane societies struggle to deter outbreaks of mass violence is by working to pursue justice, so that would-be war criminals might think twice about their actions after seeing that perpetrators of such crimes are being aggressively pursued and held to account for their crimes.”

— Lanny Breuer, chief of the U.S. Justice Department’s Criminal Division, speaking last week at a Holocaust Remembrance Program held by the Jewish Community Relations Council of Greater Washington.

Like this:

Monday, March 22, 2010 8:08 pm

… from Marine Gen. Douglas Stone, who commanded Iraqi detention operations under David Petraeus: “What if exactly what we’re doing in detention is exactly what the enemy wants? Is that not aiding and abetting the enemy?”

Like this:

Sunday, March 21, 2010 10:58 pm

… and none of us, not even Americans, are immune to some seriously bad ideas:

French documentarians conducted an experiment where they created a faux game show — with all the typical studio trappings — and then instructed participants (who believed it was a real TV program) to administer electric shock to unseen contestants each time they answered questions incorrectly, with increasing potency for each wrong answer. Even as the unseen contestants (who were actors) screamed in agony and pleaded for mercy — and even once they went silent and were presumably dead — 81% of the participants continued to obey the instructions of the authority-figure/host and kept administering higher and higher levels of electric shock. The experiment was a replica of the one conducted in 1961 by Yale psychologist Stanley Milgram, where 65% of participants obeyed instructions from a designated authority figure to administer electric shock to unseen individuals, and never stopped obeying even as they heard excruciating screams and then silence. This new French experiment was designed to measure the added power of television to place people into submission to authority and induce them to administer torture.

None of this should be at all surprising to anyone who has observed, first, the American political and media class, and then large swaths of the American citizenry, enthusiastically embrace what was once the absolute taboo against torture, all because Government officials decreed that it was necessary to Stop the Terrorists. But I just watched an amazing discussion of this French experiment on Fox News. The Fox anchors — Bill Hemmer and Martha MacCallum — were shocked and outraged that these French people could be induced by the power of television to embrace torture.

Speaking as employees of the corporation that produced the highly influential, torture-glorifying 24, and on the channel that has churned out years worth of pro-torture “news” advocacy, the anchors were particularly astonished that television could play such a powerful role in influencing people’s views and getting them to acquiesce to such heinous acts. Ultimately, they speculated that perhaps it was something unique about the character and psychology of the French that made them so susceptible to external influences and so willing to submit to amoral authority, just like many of them submitted to and even supported the Nazis, they explained. I kept waiting for them to make the connection to America’s torture policies and Fox’s support for it — if only to explain to their own game show participants at home Fox News viewers why that was totally different — but it really seemed the connection just never occurred to them. They just prattled away — shocked, horrified and blissfully un-self-aware — about the evils of torture and mindless submission to authority and the role television plays in all of that.

So Fox News broadcasters, even the psych majors among them, haven’t encountered Stanley Milgram’s work in their education and experience. Color me shocked.

But there’s a bigger point here, one that we ignore at our peril: The research of Milgram and others has found that, for reasons that may or may not be well understood, human beings have such an innate desire to please authority that most of them will willingly torture, even kill, other human beings win that approval. The idea that, in the Reality TV Age, television only amplifies this effect strikes me as Dr. Science Meets Captain Obvious.

I’m just enough of a pessimist to believe that evil can appear at any time among the banal choices and duties of everyday life, that we won’t always recognize it immediately for what it is, even when it is looking at us in the mirror, and that we therefore must always be wary. That means all of us, even — especially — we Americans.

Sunday, February 28, 2010 10:37 pm

One “defense” offered by former Justice officials John Yoo and Jay Bybee to the offensive suggestion that they tried to circumvent ignored international law banning to approve torture basically amounts to, “Well, if you’re gonna go after us, you’ve got to go after everybody else who said it was OK, too!”

Guys, I’m more than fine with that. Heck, I’d even raise taxes to pay for it. Just sayin’.

Related: During his tenure as chairman of the Senate Intelligence Committee between 2002 and 2007, Republican Sen. Pat Roberts of Kansas told the CIA that destroying evidence of crimes was just dandy with him. Have I mentioned lately how much I miss Nancy Kassebaum?

Wednesday, February 24, 2010 11:18 pm

“A full accounting of US policy on torture following the attacks of September 11, 2001 is more important than ever,” said Hanny Megally, ICTJ’s Interim President. “The report is enlightening and chilling. It relates in detail how the lawyers tailored their memos to justify torture and to prevent accountability, marking a critical turning away from US respect for the rule of law. The United States will only manage to fully reverse this devastating policy and the actions it empowered by reaffirming accountability as an indispensable control on the abuse of power. This requires an independent investigation of the full story of US counterterrorism operations and abuses, prosecution of those most responsible for wrongdoing, continued reform of laws and institutions to prevent abuses in the future, and appropriate redress for victims of torture,” he concluded.

The director of ICTJ’s US Accountability Project, Lisa Magarrell, said that, “The OPR report conveys very clearly that the overriding concern of the White House at the time was not to ensure by careful, objective legal analysis that torture, cruel and degrading treatment of detainees were prevented and violators held to account, as both US and international law require. Rather, the authors of the torture memos went to great lengths to give the White House, CIA and others involved in counterterrorism operations advance legal cover and assurances that they could torture with impunity.” …

I have read the defenses of David Margolis’s report offered (or linked to) by several people who have corresponded with me about this. And for me it comes down to this: Yoo and Bybee, without any legal basis and while ignoring crucial precedent making waterboarding a crime, told the administration not only that it could do what it wanted but also that what it had already done in clear violation of the UN Convention Against Torture was OK.

The UNCAT’s language is simple, clear and unambiguous. It specifically rules out the defenses offered by Yoo and Bybee and their defenders. It explicitly bars treatment even substantially less severe than waterboarding. And, having been signed in ’88 and ratified in ’94 by the U.S., it is, under the Constitution, part of the “supreme law of the land,” not something that can be simply disregarded by a Justice Department bureaucrat.

The Senate Judiciary Committee is supposed to be having a hearing on this subject Friday. Chairman Pat Leahy is a former prosecutor. It would be nice to think that he’ll be asking the right questions, but then this is Leahy we’re talking about. And Greensboro’s own Howard Coble, also a former prosecutor, has been absolutely no damn help on this at all.

The chief author of the Bush administration’s “torture memo” told Justice Department investigators that the president’s war-making authority was so broad that he had the constitutional power to order a village to be “massacred,” according to a report by released Friday night by the Office of Professional Responsibility.

The views of former Justice lawyer John Yoo were deemed to be so extreme and out of step with legal precedents that they prompted the Justice Department’s internal watchdog office to conclude last year that he committed “intentional professional misconduct” when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects.

The report by OPR concludes that Yoo, now a Berkeley law professor, and his boss at the time, Jay Bybee, now a federal judge, should be referred to their state bar associations for possible disciplinary proceedings. But, as first reported by NEWSWEEK, another senior department lawyer, David Margolis, reviewed the report and last month overruled its findings on the grounds that there was no clear and “unambiguous” standard by which OPR was judging the lawyers. Instead, Margolis, who was the final decision-maker in the inquiry, found that they were guilty of only “poor judgment.”

The report, more than four years in the making, is filled with new details into how a small group of lawyers at the Justice Department, the CIA, and the White House crafted the legal arguments that gave the green light to some of the most controversial tactics in the Bush administration’s war on terror. They also describe how Bush administration officials were so worried about the prospect that CIA officers might be criminally prosecuted for torture that one senior official – Attorney General John Ashcroft – even suggested that President Bush issue “advance pardons” for those engaging in waterboarding, a proposal that he was quickly told was not possible.

At the core of the legal arguments were the views of Yoo, strongly backed by David Addington, Vice President Dick Cheney’s legal counsel, that the president’s wartime powers were essentially unlimited and included the authority to override laws passed by Congress, such as a statute banning the use of torture. Pressed on his views in an interview with OPR investigators, Yoo was asked:

“What about ordering a village of resistants to be massacred? … Is that a power that the president could legally -”

“Yeah,” Yoo replied, according to a partial transcript included in the report. “Although, let me say this: So, certainly, that would fall within the commander-in-chief’s power over tactical decisions.”

“To order a village of civilians to be [exterminated]?” the OPR investigator asked again.

“Sure,” said Yoo.

Yoo is depicted as the driving force behind an Aug. 1, 2002, Justice Department memo that narrowly defined torture and then added sections concluding that, in the end, it essentially didn’t matter what the fine print of the congressionally passed law said:The president’s authority superseded the law and CIA officers who might later be accused of torture could also argue that were acting in “self defense” in order to save American lives.

This is the “I’m-putting-my-fingers-in-my-ears-and-chanting-nyah-nyah-nyah-I-can’t-hear-you” school of jurisprudence. John Yoo was arguing that the UN Convention Against Torture, the Geneva Conventions and related U.S. criminal statutes either didn’t exist or existed but don’t apply. (Moreover, he was doing it to cover for crimes that, by May 2002, had already happened, in particular the torture of Abu Zubaydah — a fact of which Yoo and Bybee were aware at the time and of which Margolis had to be aware by the time he began his review.)

Yoo’s legal thinking was so fundamentally flawed that career staffers in the Justice Department’s Office of Professional Responsibility had concluded that Yoo and Bybee’s actions constituted “intentional professional misconduct.” (Do you realize how bad their conduct had to be for other government lawyers to turn on them like that?) That designation could lead to disbarment proceedings; in the case of Bybee, who is now a federal judge, it also could be grounds for impeachment. Not only that, but John Ashcroft — John Ashcroft! – was so certain that what Justice was being asked to bless was wrong that he actually tried to get people pardoned in advance. If he thought there was any way to defend a legal opinion blessing the torture, why do you suppose he thought the torturers would need pardons?

But Margolis, apparently having concluded that “Don’t pretend you can commit crimes against humanity with impunity” is somehow less a self-evident standard than, say, “Don’t intentionally run over pedestrians,” is now overturning the sober consideration of career staff and claiming no harm, no foul. And we’re all just supposed to nod and say “OK” and move on to other things.

Well, hell, no.

As the New York Times observes, Margolis “said the ethics lawyers, in condemning the lawyers’ actions, had given short shrift to the national climate of urgency in which Mr. Bybee and Mr. Yoo acted after the attacks of Sept. 11, 2001.” Sorry, but that makes it even worse: It is precisely at the times of utmost stress that the nation’s most senior enforcers of laws must be most vigilant to see that the government follows the law. There’s no “But our buildings just got bombed!” or “But — but — but — we were all SKEEEEERED then!” exception to the U.N. Convention Against Torture. Part 1, Articles 2 and 3, specifically state:

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Mr. Margolis, Fred doesn’t bestow praise lightly, and I don’t take his regard for you lightly. But from where I sit, you’ve just made yourself an accessory to torture and murder as well as another candidate for disbarment. Sanctioning an argument that the president has the legal right to order another Lidice isn’t just poor judgment, it isn’t just intentional professional misconduct, it’s also criminal lunacy and its perpetrator is a menace to humanity.

And if all I can do about it is scream in outrage in the middle of the night, well, at least I’m going to do that.

UPDATE: Law prof Jonathan Turley rips Margolis a new one:

I mean, “bad judgment” is when you make unfortunate choices in dinner guests; it’s not when you support a torture program. And what we’re seeing right now is the dismantling of precedent that we created at Nuremberg, when we said that you can’t facilitate war crimes as lawyers and say that it was simply bad judgment. Everyone who commits war crimes often thinks about their own accountability. They often go to lawyers to facilitate them. That’s why they were so critical [of German lawyers] at Nuremberg. And what we’re seeing now is that we’re just treating it like just a bad day, and it’s more than that. What we’re losing in all of this is one of the core principles of Nuremberg. …

If you can’t be held accountable for facilitating war crimes, something that they don’t really discuss in this report, then when can you be held accountable? I mean, this is it. I mean, this is the worst-case scenario. And so what the Justice Department has done is carved out for itself a standard that it can never fail, that even supporting torture is just bad judgment. In this report, it’s astonishing what you read. With Bybee — who is a judge, who’s sitting in judgment on others right now — is accused in this report of leaving out critical cases, of — of leaving out weaknesses. In one case he said he just assumed that Gonzalez would know about the limitations of this type of executive claim, or the limitations on a good-faith defense. He just assumed he’d know that, and instead they produce this report, which was a roaring endorsement of torture. That’s being treated as, in the report, as, quote, incomplete legal analysis. It’s not incomplete. It’s, it’s willful blindness. It’s an attempt to defend a flawed legal theory to support a torture program. …

A lot of it will be particularly interesting to law professors and legal experts in the extent to which people like Bybee, who really comes off badly in this report, left out critical pieces of precedent, where he was aware of Supreme Court cases that go the other way and he just leaves them out of the memo. In one case they rely on language in the United Nations Convention Against Torture that was never ratified, and yet they treat it as if it were. I mean, that’s the degree of misrepresentation that is in this memo [that Yoo and Bybee wrote]. The Justice Department doesn’t really deal with that and it does certainly not deal with what they’re doing with the Nuremberg standards. Instead they just say that, you know, they’re wrong, they’re incomplete, they’re showing bad judgement, uh, but that’s not something that they should necessarily be punished for, even though people were tortured as a result of their advice. …

If this report [had] existed back in Nuremberg, it would have resulted in acquittals for all of the people that we sentenced. But this is a bloody nightmare for civil libertarians. We have an ex-vice president who’s proudly proclaiming how he’s supported torture. We have a current president who is preventing any serious investigation of torture. If torture is so bad, imagine what it’s like to try to protect alleged torturers, war criminals, and that’s the really dark period we’re finding, where we’re all wondering, “Where did our principles go?”

Former federal prosecutor Marcy Wheeler is doing a line-by-line analysis on the OPR report and Margolis’ work here.

The Taliban’s top military commander was captured several days ago in Karachi, Pakistan, in a secret joint operation by Pakistani and American intelligence forces, according to American government officials.

The commander, Mullah Abdul Ghani Baradar, is an Afghan described by American officials as the most significant Taliban figure to be detained since the American-led war in Afghanistan started more than eight years ago. He ranks second in influence only to Mullah Muhammad Omar, the Taliban’s founder and a close associate of Osama bin Laden before the Sept. 11 attacks.

Mullah Baradar has been in Pakistani custody for several days, with American and Pakistani intelligence officials both taking part in interrogations, according to the officials.

It was unclear whether he was talking, but the officials said his capture had provided a window into the Taliban and could lead to other senior officials. Most immediately, they hope he will provide the whereabouts of Mullah Omar, the one-eyed cleric who is the group’s spiritual leader.

A couple of thoughts:

First, fine, fine work by our intelligence services.

Second, Dick Cheney needs to shut up about how Obama is handling al-Qaeda and the Taliban, inasmuch as this is a bigger catch than anything Cheney’s crew managed.

Third, I think both the Times and the “officials” mentioned in the last graf have to know that if Baradar could lead us to Mullah Omar, he’d have done so by now. Although the exact circumstances under which we caught Baradar are unclear, Omar probably got word of Baradar’s disappearance, if not capture, within hours and hit the road immediately. That’s no one’s fault and certainly not a criticism. It’s just reality.

Fourth, this guy might or might not be a treasure trove, but irrespective of how much he knows, he has to be treated carefully so that, if push comes to shove, anything he gives us can be used in court.